Analysis: you can record cops, even in private

In the past year, two different appeals courts have ruled that recording the actions of police officers in public places is protected by the First Amendment. A new legal analysis argues that the right to record the actions of law enforcement is also protected by the Constitution's due process clause. This right can apply even in non-public settings.

The paper is written by Glenn Reynolds, best known as the author of the Instapundit blog. He has a day job as a law professor at the University of Tennessee, and he co-authored the paper with attorney John Steakley.

Reynolds and Steakley point to two ways that a right to record interactions with law enforcement officials is implicated by the due process protections of the Fifth Amendment. One is as a check against police misconduct.

The paper points to the case of Tiawanda Moore, a woman who went to a police station to file a complaint against a police officer for allegedly assaulting her. The police officer she spoke to, Officer Luis Alejo, tried to talk her out of filing the complaint. In a recording of the conversation taken by Moore, "Alejo was heard explaining to Moore that she might be wasting her time because it was basically her word against that of the patrol officer. Alejo also said they could 'almost guarantee' that the officer would never bother her again if she dropped the complaint."

When the officers at the police station learned she was recording their conversation, they arrested her then charged her with wiretapping. She was acquitted after the jury heard her recording of the conversation.

Criminal trials sometimes pit the word of police officers against the word of defendants concerning incidents that occurred when no witnesses are present. Given that jurors may be more inclined to trust the word of police officers than defendants, access to a recording of an interaction may be the only way for an innocent defendant to demonstrate that an officer's account of an encounter is inaccurate.

Reynolds and Steakley also note that the right to record interactions with public officials could be essential if a defendant is charged with violating the False Statements Act. That makes it a federal crime to lie to a federal official. Once again, if the government mischaracterizes the defendant's statements, a recording of the defendant's actual words can be essential to mounting a defense.

Interestingly, these arguments apply most strongly in private settings, where there might be no witnesses present. So far, challenges to wiretapping laws have focused on recordings taken in public places like the Boston Common. But if the courts accept Reynolds and Steakley's arguments, citizens could gain the right to record their interactions with government officials regardless of where they occur.

Yeah, this is the sort of thing that any public employee should have zero objection to. As far as law enforcement in general, well they often use the "if you're doing nothing wrong then you should have nothing to hide or fear" and I see no reason why that argument doesn't apply to them as well. I have advocated for years that mandatory recording of all officers at all times when on duty would be in the public interest. Not only would it assist in ridding our system of the bad apples but it would help exonerate any against whom untrue allegations are made.

I'm all for this, but there are situations where the recording is unfair to the police. If the recording starts after a defendant has taken a swing at a cop and only shows the cops responding physically (and not the instigation), then it looks like police brutality, when it may have been an appropriate response.

I think the right to record trumps this scenario because of the very important check against corruption. The occasional unfair treatment of a police officer will be an unfortunate side effect that probably can't be avoided. The benefits significantly outweigh the problems.

I'm all for this, but there are situations where the recording is unfair to the police.

No, there are no situations where recording is unfair. None, ever.

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If the recording starts after a defendant has taken a swing at a cop and only shows the cops responding physically (and not the instigation), then it looks like police brutality, when it may have been an appropriate response.

That's not the fault of recording, that's the fault of effectively selective editing, which should come out in the trial. And it has an easy solution: more recording. This is already starting to happen, because for good police recording is extremely valuable for the police. It protects them from false allegations, improves public trust, and helps weed out bad apples. Police should wear a reliable personal life log (and have total recording from vehicles too of course) at all times they are actually on patrol.

It's not a one-way street, recording is good for both sides and both sides should do it.

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The occasional unfair treatment of a police officer will be an unfortunate side effect that probably can't be avoided.

"The citizen edited their video. Here are where you can see frame-skips. Here is our video of the full thing." There shouldn't be any unfair treatment going on, seriously.

Recording an encounter with an officer would surely be helpful in some (several) cases that've happened in our area. Those being, crooks masquerading as police officers. Including stolen police cars and uniforms. Or, in other cases, cars painted to look very much like police cars, and clothing faked up to look like uniforms... Consequences? Theft or rape; both have happened. Possible benefit of recording the encounter? I would think, somewhat obvious.

occasional unfair treatment of a police officer will be an unfortunate side effect that probably can't be avoided

That is a scary statement, because the logical response is "occasional unfair treatment of _any person_ will be an unfortunate side effect that probably can't be avoided". You can't just pick and choose with these things. If you could be unfair to 1 citizen, but lock up/correct/monitor/whatever 99 criminals, do you throw out that one person's rights?

I hate to give a slippery slope argument, but that's a damned scary grade to stare down, in my opinion.

xoa wrote:

And it has an easy solution: more recording.

Where does the recording stop? That's a pretty critical question. One of the Baen authors (I can't be assed to look up which one right now) has a set of stories about society with universal observation. It's pretty creepy.

That said, I'd be OK with this if the police officer is acting as a police officer. I wouldn't agree with carte blanche to cancel out an LEO's 4th (and sundry other) rights because it's a police officer.

I would, however, be OK with full-time recording on police uniforms, with a reasonable data retention. At some point, shit's gotta fall off of the system, and that'll be hard timeframe to establish. Maybe like 30 days, plus 150 days for 'incidents"; I think they already have to log stops and the like, so if you set up the computer to automatically retain log entry +/- 5 minute. Something like that.

There are situations where an officer would have to be unrecorded; undercover busts, for instance, can't always be wired. I think special cases can be made; if you really wanted, maybe issue something equivalent to a search warrant saying that a judge has read the issue and concurs that recording is not practical for this incident.

Um, when the officers aren't on patrol? Pretty easy and obvious, this is about LEOs and their interactions with the Public. It makes sense from both sides to thoroughly record all such interactions. It has nothing to do with anything beyond the interactions.

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One of the Baen authors (I can't be assed to look up which one right now) has a set of stories about society with universal observation. It's pretty creepy.

Panopticons have been considered heavily for a long time, and they are scary and dangerous. They also have nothing to do with this particular discussion.

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That said, I'd be OK with this if the police officer is acting as a police officer. I wouldn't agree with carte blanche to cancel out an LEO's 4th (and sundry other) rights because it's a police officer.

Um, yeah. Hence, the language "public official engaging in their official duties" which shows up pretty much everywhere. Not a public official? This doesn't apply to you. Public official on private business, not acting under the color of the State? This doesn't apply to you.

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At some point, shit's gotta fall off of the system,

Assuming 60 hour weeks and two weeks vacation a year, very high quality 1080p video would only consume something like 10.8TB/officer/year for total coverage (and in reality it's probably more like 1% of that would be actual interaction). Not a big deal to keep stuff around for quite a while, maybe even indefinitely. Sure we'd want to toss everything "routine", probably a lot of patrols where absolutely nothing of note happens, but if there's any question it makes sense to err on the side of retention.

Might make the most sense to tie it to cases in the end, with different sunsetting for different levels of crime. Maybe no need to retain recordings on every traffic stop, but for a felony it might have value indefinitely. Expunging of records would naturally hit recordings too. Exactly how to handle it is worth considering, but in the mean time we should probably just hang on to everything where an event actually happens.

We already have police dash cams. I'd say we should expand that to cams embedded in the officer's uniform. That way, any and all interactions are recorded and never again would there have to be a defendant's word against an officer's. If the cam was turned off, the presumption would be in favor of the defendant.

That shouldn't carry any privacy concerns given that police patrol public areas and that an officer going into a private residence is already an inherent intrusion upon privacy. If an officer improperly enters or even peers into your home, it's an intrusion regardless of whether or not he has a camera running. If he does, then at least there's proof of his/her misconduct. Likewise, this will also protect good officers from false complaints.

The problem with cameras in officers' uniforms should be obvious, and I'm surprised no one here has raised it. What about all the people around a police officer that don't want to be recorded by the police? There is a potentially huge difference between the citizenry recording the police and the police recording the citizenry. I'm all for the right of civilians to record their interactions with police. I am not a big fan of the police recording every interaction with civilians. Let's save the recordings by police for when a recording is warranted (traffic stops, serving warrants, interrogations, etc. would all be OK in my book). To give an extreme example, I'm not sure anyone here is suggesting that the police should automatically be recording when they make that terrible visit to someone's home to tell them a relative has just died.

Dash cams are different. They are generally only turned on during a stop (or chase). Even ones that are on all the time, though, do not record an officers' day-to-day interactions with civilians. (In my example above, barring unusual sight-lines, the interaction is unlikely to show up on a dash cam.)

The problem with cameras in officers' uniforms should be obvious, and I'm surprised no one here has raised it. What about all the people around a police officer that don't want to be recorded by the police? There is a potentially huge difference between the citizenry recording the police and the police recording the citizenry. I'm all for the right of civilians to record their interactions with police. I am not a big fan of the police recording every interaction with civilians. Let's save the recordings by police for when a recording is warranted (traffic stops, serving warrants, interrogations, etc. would all be OK in my book). To give an extreme example, I'm not sure anyone here is suggesting that the police should automatically be recording when they make that terrible visit to someone's home to tell them a relative has just died.

Dash cams are different. They are generally only turned on during a stop (or chase). Even ones that are on all the time, though, do not record an officers' day-to-day interactions with civilians. (In my example above, barring unusual sight-lines, the interaction is unlikely to show up on a dash cam.)

There are places where they already record everything (audio only) for police. I sat on a jury for a case where they had the local police officer's recording of everything from where they showed up through taking the guy to booking. Both the officer and his car carry microphones. It's only audio, but still...

There's another book I read, can't remember the name, when they'd developed the technology to project a virtual camera at any physical point anytime in the past (using wormholes?). All privacy instantly disappeared - as did crime, as it was instantly solvable. Resistance grew, but the young started implanting wormhole sensors in their body, connecting them to others' senses. Eventually, humanity evolved to non-corporal beings.

I'm all for this, but there are situations where the recording is unfair to the police.

No, there are no situations where recording is unfair. None, ever.

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If the recording starts after a defendant has taken a swing at a cop and only shows the cops responding physically (and not the instigation), then it looks like police brutality, when it may have been an appropriate response.

That's not the fault of recording, that's the fault of effectively selective editing, which should come out in the trial. And it has an easy solution: more recording. This is already starting to happen, because for good police recording is extremely valuable for the police. It protects them from false allegations, improves public trust, and helps weed out bad apples. Police should wear a reliable personal life log (and have total recording from vehicles too of course) at all times they are actually on patrol.

It's not a one-way street, recording is good for both sides and both sides should do it.

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The occasional unfair treatment of a police officer will be an unfortunate side effect that probably can't be avoided.

"The citizen edited their video. Here are where you can see frame-skips. Here is our video of the full thing." There shouldn't be any unfair treatment going on, seriously.

This is already happening with police departments that use various forms of recordings. Citizen videos are discredited by other videos showing the entire event and occasionally during controversial incidents, police recording devices suffer failures due to unknown cause.

Personally, I think this is a step in the right direction. I would like to see recording REQUIRED for all law enforcement officers. Once it becomes standard practice, make testimony is either inadmissible or greatly devalued if the original recording is unavailable. Officers could still testify to the context of the recordings, but suddenly the bar gets raised very high for integrity in the system.

Inexpensive continuous recording systems for at least audio could be made available with todays technology. A 4GB thumb drive with audio recorder is <$20 retail and would hold a months worth of audio. I'd bet you could even do spot video recording with a shoulder mounted cam (and continuous audio) where they hit a button when they go to stop someone fairly cost effectively.

All of this could be mandatory public record. Obviously, you can give them control to turn it off for personal calls, breaks, etc... but for purposes of testimony to the court, i'd say it should be required.

The problem with cameras in officers' uniforms should be obvious, and I'm surprised no one here has raised it. What about all the people around a police officer that don't want to be recorded by the police? There is a potentially huge difference between the citizenry recording the police and the police recording the citizenry. I'm all for the right of civilians to record their interactions with police. I am not a big fan of the police recording every interaction with civilians. Let's save the recordings by police for when a recording is warranted (traffic stops, serving warrants, interrogations, etc. would all be OK in my book). To give an extreme example, I'm not sure anyone here is suggesting that the police should automatically be recording when they make that terrible visit to someone's home to tell them a relative has just died.

Dash cams are different. They are generally only turned on during a stop (or chase). Even ones that are on all the time, though, do not record an officers' day-to-day interactions with civilians. (In my example above, barring unusual sight-lines, the interaction is unlikely to show up on a dash cam.)

People accidentally recorded due to their being in the field of view while a picture or video is taken? That is already covered by existing law regarding use of cameras.

If you want to take a picture of a store in New York, do you need to get permission from everyone standing on the sidewalk or in view inside the store? Virtually in all cases the answer is no. If they choose to be visible in a public place, then you have implicit permission to photograph/video them. Celebrities have been fighting for years to cancel this implicit permission. To date all they are able to do is file harassment charges against those whose behavior violates various laws governing interaction with others in public places. The photo/video activity involved in the harassment is rarely the issue they are actually charged with.

Dash cams taking video during a traffic stop also take videos of passersby and passing cars without permission or warrant. If you cite accidental photography, then dash cam videos need to be edited to scrub all identifiable portions of persons and vehicles not involved in the traffic stop. When done automatically, this will also eliminate footage of the second person or vehicle that involved themselves in the stop without permission. While uncommon, it does sometimes happen when the stop involves someone actually involved in a crime.

For what it is like to live withe the PanOpticon check out the UK. Widespread public surveillance is in use there. Completely different issue than simply taping police at work. In US it is very common in private businesses. The warning that recording is being done is usually prominent to keep people honest, but do not rely on the absence of signage to indicate the absence of recorded surveillance.

I'm all for this, but there are situations where the recording is unfair to the police.

No, there are no situations where recording is unfair. None, ever.

What a silly statement. Say I see a person hit a cop. Then I turn on my camera as the police officer defends himself and takes the guy down. Then I post the video to youtube with the title "POLICE BRUTALITY!!" Yeah, that's not unfair at all, even though I never recorded the start of the assault.

xoa wrote:

That's not the fault of recording, that's the fault of effectively selective editing, which should come out in the trial.

Again, ridiculous. It's not 'selective editing' if the camera wasn't on in the first place until after the incident started. It's very possible to not tell the whole story in video without editing anything. That situation will be unfair to someone -- perhaps it's the cop, or perhaps it's the other guy.

Also, since the word of an officer or other government official is considered fact, the right to record private conversations with said officials is essential. Then the only question is of proving no editing occurred.

Isn't any recording of conversations for private individuals, by private individuals, not admissible as evidence unless the other party is aware you are recording? I could see this being challenged on that ground, i.e. public employees deserve the same rights as private ones. Also what scope would this reach to if the precedence goes beyond the police? Any recording allowed of any government employee could cause many issues and maybe interfere with their duties, especially consider those involved in critical functions or 'high' levels of government. Could anyone record some 'low end' government employee in their office, say, talking about an affair they had, be recorded by someone sitting at the next desk then allow that to be admissible in divorce court? What about unintentional recordings? Could they be subpoenaed?

I'm not sure of the legality of what already exists in those situations, but a broad interpretation eventually could cause a big mess and a lawyer feeding/lawsuit frenzy, which is always bad.

That all being said, I fully and completely support individuals being able to record the police, and especially the TSA.

I am just thinking of the ramifications that a broad interpretation of this ruling and mess that this could be lead to at some point, plus playing the devil's advocate a bit. This is why the legislature should do their job and make/pass laws to clarify situations instead of just relying on judicial rulings. Judges can't make law, but rulings are often interpreted as such.

Look at Roe vs Wade as an example (PLEASE NO ABORTION ARGUMENTS). In 2008, both presidential candidates mistakenly referred to it as law, but under the Constitution, only the legislature can make law. It is just a court decision.

First about the people about the 'selective recording', the police already record their interaction with you. And have for years, its the dash cam, making the officers wear recording (wearable computing any one.) devices that record the interaction.

That's just part of the recipe, besides keeping the data, an unrelated org, (Non paramilitary org) determine what can be deleted, and verify that is ONLY whats being deleted.

The police have a hard job, granted. If they're doing it right, they have nothing to hide. Might sure help the perception that the police protect each other, assault you, and imprison your friends. That was the neighborhood I grew up in. Guilt via proximity, and "oh that bruise will heal by trial time, mouthy."

I think the authors of the opinion did a great job releasing this on the tails of Rodney King's death. They're to be applauded for protecting our freedoms.

The only caveat I'd say that needs to be added to this is simply when the officer is on duty or making any attempt to exercise the powers given by their duty. It wouldn't be fair to say that a police officer can be recorded on their private residence or at another's private residence.

However, I totally, fully, 100% support any public employee being able to be recorded by citizens when they are on the job as they are essentially employees of the people, the people have the right to monitor them in the same way your boss does in a private situation.

Will people abuse this? Unquestionably, but we've already shown that it cannot be trusted to not be abused the other way around - and, in my opinion, it's more more fair to have these public officials be held to a higher standard because they are supposed to be just that, representatives of the public.

Having a big Libertarian streak, I would lean towards any interaction by private and public individual being allowed to be recorded. It just needs to be law, not a judicial decision. I was kind of analyzing the situation as opposed to offering more of a opinion.

"Chamberlain Jr. said that within an hour of appearing on Democracy Now! signatures on a petition on SignOn.org calling for retribution in his father’s case rose from 1,000 to 75,000. The petition currently has 209,482 signatures toward its 225,000 goal.

City police fired a taser, two beanbag rounds and then a fatal gunshot at Chamberlain Sr. in his apartment on Nov. 19, while they were responding to the 68-year-old heart patient’s accidental triggering of his medical alert device.

The Chamberlain family said that police should have respected Chamberlain Sr.’s rights and wishes to leave him alone after he canceled the medical alert, and told police that he was fine.

According to Chamberlain Jr., police responded to his father’s pleas with “I don’t give a f--k nigger open the door.” Westchester County District Attorney Janet DiFiore confirmed that White Plains Police used a racial slur against Chamberlain Sr. during the incident. Several officers involved in the case, including Officer Anthony Carelli who delivered the fatal shot to Chamberlain Sr., are involved in separate police brutality cases that touch on race."

Isn't any recording of conversations for private individuals, by private individuals, not admissible as evidence unless the other party is aware you are recording? I could see this being challenged on that ground, i.e. public employees deserve the same rights as private ones.

No, public sector workers deserve NO right to privacy as it relates to their interactions with the public in the act of doing their job. They are serving as the literal face of the government at those times, not as an individual. I would say they deserve all the same workplace protections otherwise, though.

The problem with cameras in officers' uniforms should be obvious, and I'm surprised no one here has raised it. What about all the people around a police officer that don't want to be recorded by the police?

You do not have an instantiated expectation to privacy in public. Don't want to be recorded in passing by somebody in public? Too bad.

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There is a potentially huge difference between the citizenry recording the police and the police recording the citizenry.

I'm not seeing it, assuming that we're still talking about a symmetrical situation.

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I am not a big fan of the police recording every interaction with civilians....To give an extreme example, I'm not sure anyone here is suggesting that the police should automatically be recording when they make that terrible visit to someone's home to tell them a relative has just died.

For interactions in the course of their official duties I lean towards everything, while acknowledging that the right practical balance may require some exceptions to be carved out. For situations like your example I can see it going either way. The debate would be whether (and perhaps when) pre-purge works better then post-purge. What you're effectively describing is a situation where there is a dual-role, with the officer in question wearing a different "hat" then normal (as happens with many jobs). The police officer is visiting someone's private residence acting as an official representative of the state (or organization), not as a Law Enforcement Agent per se. In theory anyone could have been appointed as an official representative, but temporarily assigning that role to an officer is a sensible and efficient choice.

The "post-purge" method for handling that case, or other similar cases, would be that all non-incident related footage can and should be destroyed at regular, short intervals (or perhaps even at the end of every patrol). So unless something happens and the police specifically flag it, footage is automatically purged. The case against this method is basically one of trust: "what if" the purging doesn't happen, or someone duplicates it, or whatever. I don't think that's a strong case though, because by definition a law breaker isn't going to be as concerned with not breaking the law. They could surreptitiously be recording anyway. The case for post-purge is the opposite "what if": what if something unpredictable happens. What if the officer is reporting the death, and the relative turns violent? What if they're reporting, and a robbery happens to take place just then? Etc. While footage can always be deleted later, in the heat of the moment or in a case where instant response is necessary it's not realistic to expect the officer to switch the system on. As the central part of a LEO's job is dealing with unpredictable events/crimes, it in turn seems safer to record up front, then only keep the interesting bits rather then trying to predict exactly where and when interesting things will happen.

The "pre-purge" method is as you describe: just turn off/don't wear recording equipment for certain duties. The advantage there is that there is no chance of any official changing of mind, leaks, or whatever. Can't have mistakes with something that was never recorded in the first place. The disadvantage is that if something unexpected did happen, you have to accept a big blank spot.

I'm honestly not entirely sure which is best. I lean towards post, because it seems pretty easy to technically implement, to police, and the downsides seem relatively low. I can see both sides though.

Isn't any recording of conversations for private individuals, by private individuals, not admissible as evidence unless the other party is aware you are recording?

Kolvir, there are two parts to this. To take the first (would recording violate the law), that's only if you live in a two-party consent state, which are rare. Most states are one-party consent, which means any one party to a conversation can unilaterally record it without notification. Please see for example "Summary of Consent Requirements for Taping Telephone Conversations".

The second part ("admissible as evidence") is separate from whether it is illegal when it's "by private individuals". For the government there is "fruit of the poisoned tree". If a government agent breaks the law to obtain evidence, that evidence may be thrown out. However, the government may be free to make use of private evidence submitted, even if that private person broke the law. That person could in turn be prosecuted/sued for their own crime, but that doesn't mean the evidence will get thrown out.

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I could see this being challenged on that ground, i.e. public employees deserve the same rights as private ones.

But they don't while acting in their official role. Actually, most private employees don't either.

The problem with cameras in officers' uniforms should be obvious, and I'm surprised no one here has raised it. What about all the people around a police officer that don't want to be recorded by the police? There is a potentially huge difference between the citizenry recording the police and the police recording the citizenry. I'm all for the right of civilians to record their interactions with police. I am not a big fan of the police recording every interaction with civilians. Let's save the recordings by police for when a recording is warranted (traffic stops, serving warrants, interrogations, etc. would all be OK in my book). To give an extreme example, I'm not sure anyone here is suggesting that the police should automatically be recording when they make that terrible visit to someone's home to tell them a relative has just died.

That's why I recommended a fall-off point. I'd still keep footage for a while, in case.

Alternatively, I suppose POV cams could be used. That basically records what the officer sees anyway. Of course, our officers would look odd with a camera on their noggin.

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Dash cams are different. They are generally only turned on during a stop (or chase). Even ones that are on all the time, though, do not record an officers' day-to-day interactions with civilians. (In my example above, barring unusual sight-lines, the interaction is unlikely to show up on a dash cam.)

I think they turn on as soon as the officer hits the lights/siren. That's functionally equivalent to what I'm saying, I think, except in my example everything would be recorded, then discarded/retained on return based on incident reports.

And, as I said, the specifics of timing would have to be worked out. I'd like to see recording all the time so it's not elective, then discarded later, with a bit of holdover. That way if someone says "Officer Barbrady beat the crap out of me with his baton", even if it's a couple days later the footable can be referenced.

Again, it could be treated as hands-off by the officers and police force, and the recordings stored and handled by the justice department with requirements for a search warrant for access. That means the police don't gain much (if any) ability to trawl footage for something to ticket on, but the data is retained longer.

Cops will still hassle you or arrest you if you try to record them, either audio or video. Don't forget that lots of towns/states believe citizens have no right to record anything the police (or any public official) does. You might win later in court, but you will still most likely get tossed into jail and likely beaten for resisting arrest. And of course you will have a criminal record which you will have to pay an expensive lawyer to try to remove. And God help you if you try to record a cop in Chicago.

First and foremost, remember that the cops are not necessarily on your side. and they are not necessarily even honest.

I'm all for this, but there are situations where the recording is unfair to the police. If the recording starts after a defendant has taken a swing at a cop and only shows the cops responding physically (and not the instigation), then it looks like police brutality, when it may have been an appropriate response.

I think the right to record trumps this scenario because of the very important check against corruption. The occasional unfair treatment of a police officer will be an unfortunate side effect that probably can't be avoided. The benefits significantly outweigh the problems.

Except that there have been recordings of said activity and it hasn't resulted in convictions against officers unless there was also corroborating evidence. Just look at Rodney King, who was beaten well past the point of any resistance, and the officers involved were still acquitted.

In any situation of cop's word versus private citizen's word I would rather have a recoding than not have. It should be mandatory, not just legal.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.